From Inksters Solicitors

Crofting Convenergate?

We recently blogged on the change of Convener within the Crofting Commission. There was reference in that post to what has been called a “witch-hunt” and “a bad smell”. Three letters written by Dr Iain MacKinnon to the West Highland Free Press give more detail on what one might refer to as ‘Crofting Convenergate’. We publish them here in their entirety and as they were written (the West Highland Free Press edited the second of the three letters a little prior to publication).

Letter 1: 3 May 2015

The anonymous Crofting Commissioner quoted in last week’s Free Press claimed discontent with Susan Walker’s convenership of the Commission has “been going on for some time”.

If that is so, then why did the five alleged complainants not wait for the scheduled Commission board meeting on 13th May to raise their no-confidence motion: what sudden calamity made their ‘emergency meeting’ such an imperative? The anonymous commissioner was silent on this, as they were on any details about Susan Walker’s failings.

The Free Press then claimed they had been told: “The commissioners did not want to go on the record at this stage”.

This remarkable statement suggests the complainants have agreed collectively to leak the story anonymously while anticipating going ‘on the record’ in the future.

This would be an astonishing course of action. The conspirators must be aware there are proper procedures available to them for resolving such disputes. Instead they must have decided collectively to throw the organisation that they represent – and crofting regulation generally – into public disrepute.

This matters because section 2.1. of the Commission’s Code of Conduct states commissioners “have a duty to act in the interests of the public body of which they are a member and in accordance with the core functions and duties of that body”.

The code then states: “You have a duty to promote and support these principles by leadership and example, and to maintain and strengthen the public’s trust and confidence in the integrity of the public body and its members in conducting public business.”

The code also demands that commissioners must respect their fellows, “treating them with courtesy at all times”. The anonymous briefings clearly breach this part of the code.

If they have been jointly briefing against Susan Walker the five complainants appear to be in breach of the Commission’s Code of Conduct and liable to investigation by the Standards Commission for Scotland which polices ‘The Ethical Standards in Public Life Act’.

Additionally, “promoting the interests of crofting” is a requirement for commissioners under Part 1 of the Crofting Act and, if they are shown to have acted against this, then under Schedule 1 they can be found unsuitable to continue and dismissed.

If, as is alleged, five anonymous commissioners want to declare ‘no-confidence’ in Susan Walker, they are free to do so. However, if they have also unnecessarily called an ‘emergency meeting’ and then systematically leaked that news to the media for maximum publicity, then they have undoubtedly weakened “the public’s trust and confidence in the integrity” of the Crofting Commission and they have brought their own positions within it into disrepute.

If this is the case, the Crofting Minister must consider whether such people are fit for public office. If it turns out that, in fact, the anonymous briefings have been instigated by one or two individuals, without the consent of other complainants, then those complainants who have been used in this way need to think carefully about the ugly, cowardly whispering campaign of which they are now part.

Letter 2: 18 May 2015

I would like to add to the tributes offered to former Crofting Commission convener, Susan Walker. My primary reason for writing is as it was two weeks ago – not as a friend and one-time colleague of the former convener, but as someone concerned about the future well-being of crofting tenure.

The whispering campaign against Susan Walker began in the media at the end of last month. Since then, her work on behalf of crofting throughout the Highlands and Islands has been praised by the Scottish Crofting Federation and the chairs of the Scottish Parliament’s Rural Affairs Committee and Cross-Party Group on Crofting.

It is worth reflecting on the breadth of that support. It includes the crofting representative body, the senior parliamentarians on crofting issues and also the Scottish Government itself. All appear to believe that “the new enlightened way in which the Crofting Commission functions” has been in part the result of Susan Walker’s leadership, and had given grounds for optimism for a tenure system that had previously been described, almost universally, as “failing”.

Her critics, on the other hand, appear to comprise her disaffected former colleagues and one or two newspapers. One of these newspapers is the Free Press – with one columnist dismissing her as a ‘trusty’ in the pocket of Government.

While the Free Press’ editorial two weeks ago gave an admirably clear argument for a fully elected Crofting Commission, it also acknowledged that the newspaper publicised the conspiracy against Susan Walker without knowing what she is said to have done wrong.

So what has Susan Walker been doing right these last three years? The contrast between Taynuilt and North Ballachulish indicates the Commission’s wider change in attitude under her leadership. In 2005, when ten houses were proposed on croft land in Taynuilt, the old ‘failed’ Crofters Commission folded to the developer’s demands with barely a whimper. By contrast, under Susan Walker’s leadership the new Commission has taken its opposition to the current plan for ten houses on a croft in North Ballachulish all the way to the Land Court.

This principled opposition was not the result of new legislative requirements but of a new determination within the Commission itself. The wide-ranging praise Susan Walker has received in recent weeks suggests this step-change has been noted throughout the organisation’s work.

The commissioners responsible for the covert briefings against her have breached standards required for public life and brought the Commission into disrepute. They have lost the trust of government and have surely failed the trust of those who elected them to turn around the mess they inherited. It would be a real service to crofting if the Free Press were to disclose their identity.

The media coverage no doubt greatly reduced the opportunity for a mediated process within the commission to resolve the conflict and allow Susan Walker to continue the good work she had started. The unstinting dedication for the good of crofting that she brought to her role will leave the commission with her.

However, files I obtained from the Commission last week through Freedom of Information legislation reveal that the conduct of Commissioners has been privately criticised by the Minister, with an unnamed official expressing Dr McLeod’s disappointment “at events being played out through the media” following the conspiracy against former Commission convener Susan Walker at the end of April.

A full two months after the conspiracy against Walker began, no credible information has yet been forthcoming from any Commissioner or from Government about the nature of the problems Walker is supposed to have created. The Commission is even refusing to name those Commissioners who organised the proposal of no-confidence against her – removing all but one signature from the copy they sent me of the letter in which some Commissioners put that proposal forward.

Dr McLeod’s disappointment does not stand alone. Crofters, crofting administrators, the Scottish Crofting Federation and a senior Member of the Scottish Parliament have all criticised the behaviour of the Commissioners involved in the move against Walker.

One crofter, summing up his views on social media, concluded that the Commission is in “chaos” and “disarray”, and presently not fit for purpose.

According to the FoI files, even the chief executive of the Crofting Commission, Catriona Maclean, has privately criticised the way Commissioners have handled this affair and she has gone further, with one internal note suggesting the Commission may have underplayed the level of division within their board during discussions with Government. Writing shortly after the convener’s resignation she said that, while the Commission “wanted to reassure the Minister [for Crofting] that they were keen to move forward in a united and positive way”, her own view is that there are “still differences of opinion on the merits of what happened”. In a later commentary she specified disagreement between board members which will require “a focus on healing”.

Such is the sorry state of the crofting regulator. It seems everybody knows it, yet no-one in Government or the Commission is willing to admit it, and, so far as their public statements go, it appears there will be no attempt to investigate what has really gone wrong at the Commission – and to investigate why at least one Commissioner seems to be allowed to break the organisation’s code of conduct with impunity.

Indeed, this despicable soul may even be elected convener and become the new face of crofting regulation – the files show that this was a well-orchestrated manoeuvre, and those in charge had a clear outcome in mind. The files also suggest that, in fact, the campaign against Walker had two main instigators – with at least one of them male.

Allowing the Commission to elect their own convener in such circumstances is not simply a humiliation for the Scottish Government, and for the Crofting Commission as an organisation; it undermines the credibility of crofting regulation as a whole.

Dr Iain MacKinnon is researching the politics of crofting at Coventry University, although the letters on ‘convenergate’ are not part of his academic work.

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13 thoughts on “Crofting Convenergate?”

Those behind this coup should now own up. Failing which, the Commissioners should resign en bloc and offer themselves for re-election. Only this will rescue the credibility of the Commission. This would also be an opportunity to sort out the electoral constituencies on a fair basis.

The reason the CC didn’t pursue Taynuilt was not because it “folded to the developer’s demands” but because there was no local demand for crofts. There was therefore no legitimate ground under the crofting legislation as it stood at the time upon which the CC could have opposed the development.

Dr MacKinnon claims that pursuing North Ballachulish into the Land Court “was not the result of new legislative requirements but of a new determination within the Commission itself”. I don’t approve of a quango dragging a private individual through the courts on what any half competent crofting lawyer could have predicted was likely to be a doomed case without legislative backing but merely because it is “determined”. If this is why Susan Walker has gone, then quite rightly so, IMO. Ever heard of the rule of law?

You are incorrect in claiming that the reason the Crofters Commission folded to the developers demands in Taynuilt was “because there was no local demand for crofts”. I was at the Commission hearing on this case in Taynuilt village in 2005. The chair of the hearing asked if there was interest locally in the croft and several hands went up among those attending. There certainly was local demand for crofts at that time.

Your observation on ‘the rule of law’ is pertinent. You will note from my first letter that the leak by one or more commissioners to the media is in breach of the Crofting Commission’s code of conduct. This leak is part of what the Scottish Crofting Federation is calling the ‘bad smell’ at the Commission just now. To get rid of the smell it wants a “visible attempt to deal with the commisioner who breached the Code of Conduct by going to the press”.

Given your interest in ‘the rule of law’, Neil, I presume you will be endorsing the SCF’s call for this investigation?

Iain, my information about why Taynuilt was not pursued came from someone inside the CC (who, in the circs, I’m not going to name). You have the advantage of me in having been at that meeting but I’m not convinced “several” hands (which could have belonged to NIMBYs or others opposed to the development for ulterior reasons) going up at a public meeting would have represented evidence cogent enough to have prompted the CC to embark on the exercise of rebutting the presumption in favour of decrofting raised by the existence of planning permission.

As for supporting investigations into breaches of codes of conduct etc., if there is prima facie evidence of a breach, then by all means investigate: I have no strong view provided it’s not an excuse for a witch hunt by one faction against another. What I’d be far more concerned about would be if it emerged that the CC had, in pursuance of a “determination” you describe, dreamt up this “no decrofting for part crofts without consent of all owners” nonsense as a device for blocking decroftings they had no statutory authority under the relevant legislation to prevent. For a quango to abuse its position like that would be a scandal.

Well, I’m sure we’re all in favour of the “rule of law” in crofting, and that it’s applied consistently. What the Taynuilt and Ballachulish cases have in common is that, had the “rule of law” been applied at the outset, these fiascos would not have happened. The old Commission tolerated the position where absentee so-called owner-occupiers, aka landlords of vacant crofts, were allowed to pursue speculative development instead of being required to offer letting of tenancies, as would have been the case if the Commission had been doing their job. At the time of the Taynuilt case the Scottish Executive (as was) was actively encouraging this sort of scam, and I have documents that reveal that.

When I first became the owner-occupier of a croft nearly 30 years ago, my solicitor, who was certainly far more than a “half competent crofting lawyer” warned me sternly of the consequences of failing to reside on and work the croft, i.e that I could have a tenant imposed. Pity the old Commission did not apply the “rule of law” at Taynuilt and Ballachulish. If they had, crofting would be in a better state now. But what would I know. I’m only a crofter.

ps The area assessor in Argyll at the time confirmed the known demand for crofts in Taynuilt.

Donald, if the area assessor could confirm a demand in Taynuilt at the time, then that would contradict my information and put a different complexion on the case entirely.

And I hear what you’re saying – why were these crofts lying vacant and unused awaiting decrofting when, if the CC had used its power to compel re-let timeously, the issue would not have arisen? I get it.

I’m not a crofter, I’m a townie with a dilettante interest in the matter (lawyer) but I go around the north west and see 99% of the inbye lying rank and unused with a few sheep here and there only for the subsidy. A few honourable exceptions with cows around a new shed but MASSIVE scope for the CC to get “tore right in” under 2010 Act powers on neglect etc. And as a lawyer, I agree with you that the CC’s powers under existing (pre-2010) legislation were already in place, they just had to exercise them.

But are they resourced and do they (in whom I include the government) have the stomach for the fight? The thing about grazing committees reporting people was watered down in the face of public protest (wasn’t it? do I have that right?) Dreadful business democracy and somehow I just can’t imagine Dr Macleod doing anything very courageous or bold to resolve these contradictions.

Did I see something recently about 10,000 new crofts? – what about bringing 10,000 existing ones back into meaningful use?

I was interested to see that in this week’s edition the West Highland Free Press continues, even amongst this dreadful debacle, to press the Scottish Government to amend the legislation so that all Commissioners are elected.

I would ask the WHFP to desist from their current strategy of taking dogmatic stances on matters concerning the Crofting Commission, because they appear to be making matters worse than they might have been.

The WHFP has hounded the Scottish Government over the last weeks and months to allow the Commissioners themselves to elect Susan Walker’s replacement, and Dr McLeod agreeing to do so has legitimised the hunt against Susan Walker. The Scottish Government, in my view, has made a bad situation even worse, I suspect in large part because of views of the WHFP.

The Crofting Commission appears now to be in crisis. What a dreadful shame for the once respected organisation and its hard working, knowledgeable and thoroughly decent staff.

There may be one small blessing from the fact that the Commission has selected its latest convener, rather than Dr McLeod appointing him. It is this. If the Government does now initiate an investigation into the leak against Susan Walker (and you would hope, after the SCF’s intervention this week, that they will do that), and if the new convener of the Commission turns out to have been involved in that leak (and in breach of the Commission’s Code of Conduct), then, as the convener was not appointed by the Minister, it would, presumably, be easier politically for the Minister if she decides to dismiss him.

I am not in a position to say that the new convener of the Crofting Commission is in breach of the code of conduct of the organisation that he leads. However, neither am I in a position to say that the new convener is not in breach of the code of conduct. As far as I can make out, the same uncertainty also faces anyone involved in the regulation of crofting (other than the perpetrator(s) of the conspiracy against Susan Walker – and possibly Susan Walker herself who, according to the FoI files, has effectively been ‘gagged’ by Government).

I hope this statement indicates to those in Government who are responsible for crofting the massive level of uncertainty and mistrust that surrounds the Crofting Commission and the scale of the problem that they still have on their hands.

As the SCF stated last week, there can be little confidence in the Commission until the issues that the SCF raised are investigated and adequately resolved. The Free Press, incidentally, is almost uniquely well place to contribute to that investigation, given that it knows who the leak is, but the paper is also completely compromised by that fact. This may be why it is trying to make the current situation into a story about ‘democracy’ rather than acknowledging (so far anyway) what the situation really is – a crisis in the rule of law, which is what I think Neil King was alluding to in his earlier post.

I don’t think for a minute the WHFP will disclose its source, and nor should they. BUT, they do need to stop these badly informed, dogmatic stances, and the Scottish Government needs to stop taking so much heed of the paper’s editorial views.

Neil, if you could refrain from gratuitous insults to crofters I could almost start to agree with you on some of your points.

As you well know, I’m sure, nothing like 99% of inbye is rank and neglected. Agreed that far too much is, and an aspiration for the new Commission was to create the conditions to get that land into the hands of young, active people that would make a difference in communities that need an injection of new blood. If that doesn’t happen there’s nothing to argue about as crofting will simply die out. The deposed Convener knew all about that. It remains to be seen if the Commission continues on that course or goes back to presiding over 50 years of decline.

Also it’s complete nonsense to talk of sheep kept for subsidy. Since CAP reform in 2003 there has been no headage payment, so no one in their right mind has retained sheep for subsidy payments alone. A very limited headage scheme, with specific and very complicated criteria, has come in this year, but it only relates to a few extensive hill flocks.

You seem to view crofting as something a bit quaint and a bit of a curiosity, in the way that railway buffs count the rivets on ancient locomotives. I wish you would spend a day in the autumn at Dingwall Auction Mart and see how much real money is generated by crofters selling hardy, healthy stock to the mainstream industry. A lot of that money makes its way back to some of the most remote and challenged areas of H&I and goes back into local economies.

Thank you Donald. No insult was intended to active crofters but apologies if any was taken. Indeed, I didn’t intend any insult to inactive crofters either – they are where they are, in very different socio-economic circumstances from their ancestors, not even always of their own choosing. I don’t regard crofting as a quaint curiosity but think I see something which is having to work hellish hard to adapt itself to changed times. You’re right of course about the subsidies – I was exaggerating for effect (perhaps too crudely) to lament the huge areas of croft land that are grossly under-utilised. To come back round to my original point, it just seems to me inappropriate for the CC to pursue relentlessly on a technicality a 1.5ha site with planning in what’s almost now a suburban area when there are hundreds if not thousands of hectares elsewhere falling squarely within its absenteeism and neglect powers.

A belated comment on the strength of crofting in Taynuilt, or otherwise.

I lived in various parts of North Lorn for 10 years in the 1990s, and having an interest in crofting (and eventually marrying a crofter’s daughter) I regularly attended Crofters Union meetings (as they then were I think).

It was common knowledge locally, and borne out by meeting attendances, that the strongholds of active crofting in the area were Lismore, Appin – and Taynuilt.

My last few years in the area were actually as a resident of Taynuilt, which enabled me to confirm the above on a more or less daily basis. My own experience is therefore at such odds with the claim that there was no local interest in crofting, that I have often wondered how any meaningful consultation process could have come to this conclusion.

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This blog explores crofting law.
It is brought to you by Inksters Solicitors, a law firm specialising in crofting law, with offices in Glasgow, Inverness, Forfar, Portree, Wick and a visiting base in Lerwick.
The main authors of posts on this blog are Brian Inkster and Martin Minton.